Crider v. Zurich Insurance

Beasley, Chief Judge,

concurring specially.

I concur fully but wish to distinguish Pate v. Turner County, 162 Ga. App. 463 (291 SE2d 400) (1982), upon which case both appellees rely. The backhoe, which was being operated by a driver on a public roadway for the purpose of transporting a passenger in order for him to accomplish his assigned task, differs significantly from the sanitary landfill compactor in Pate.

The compactor was not designed to haul passengers or freight and the metal wheels required it to be driven on soil or dirt. Unlike the backhoe, it could not be driven on a hard surface such as a road. The backhoe’s four wheels are rubber and its scoop is for the purpose of moving or lifting and transporting soil or other objects in quantities greater than a person could do at once with a hand-held container. It was being used to elevate Crider so he could cut tree limbs which were too high to be cut from the roadway or from the bed or roof of the dump truck also being used for the project. He was thrown into the air and fell onto the roadway.

Pate is also different in another significant respect. The policy there did not cover the vehicle. The court stated that it “was not listed as a vehicle for which liability insurance was purchased.” Peculiarly, the court did not end the analysis there but stated that the immunity would not apply if the vehicle was the type for which immunity-waiving insurance could be purchased under OCGA § 33-24-51. There is no waiver of immunity if payment is not required *181under the contract. Ward v. Bulloch County, 258 Ga. 92, 93 (365 SE2d 440) (1988). “Where the plain terms of the policy provide that there is no coverage for a claim, or where the insurer has established in a declaratory judgment action that it is not obligated to pay a claim, there is no waiver of sovereign immunity. [Cits.]” Bd. of Regents &c. of Ga. v. Daniels, 208 Ga. App. 195, 196 (430 SE2d 45) (1993), rev’d on other grounds, 264 Ga. 328 (446 SE2d 735) (1994).1

The court went on in Pate nevertheless to analyze whether the compactor was a “motor vehicle” within the contemplation of the statute; if it was, there was a waiver, and if it was not, then the defense of sovereign immunity was not waived. The court construed the statute’s words and adopted several definitions of “motor vehicle” which were used in other parts of statutory law as it then existed. The Official Code of Georgia Annotated was not applied, as it was not yet in effect. OCGA §§ 1-1-1; 1-1-9 (effective November 1, 1982). Without explaining a rationale, the court chose the definitions from the Georgia Motor Vehicle Accident Reparations Act and Chapter 68 of the unofficial Georgia Code Annotated, which it described as dealing with “licenses, registration and operation of motor vehicles.” Applying those definitions, which it gave to the statute authorizing the purchase of insurance by municipalities, counties, and other political subdivisions of the state, it is not difficult to understand its conclusion that the statute did not include the landfill compactor.

But are these the proper definitions to apply in this case? The Reparations Act, known as the No-Fault Act, was repealed in 1991 and a new reparations act was adopted. Ga. L. 1991, p. 1608, § 1.12. The definition of “motor vehicle” was essentially readopted. OCGA § 33-34-2 (1). In Daniels v. Decatur County, 212 Ga. App. 378, 380 (2) (441 SE2d 790) (1994), aff’d Decatur County v. Daniels, 264 Ga. 822 (452 SE2d 511) (1995), we recognized that there are variations between the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-2) and the statute providing waiver of immunity by way of insurance (OCGA § 33-24-51). They are not coextensive.

The Paie-referenced definition in Chapter 68 is now OCGA § 40-1-1 (33) but has different wording: “ ‘Motor vehicle’ means every vehicle which is self-propelled.” The other word referenced in Chapter 68, “vehicle,” is now defined in OCGA § 40-1-1 (75): “ Vehicle’ means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used *182exclusively upon stationary rails or tracks.”

The Constitution of Georgia permits the General Assembly to “waive the immunity of counties, municipalities, and school districts by law.” Art. IX, Sec. II, Par. IX. An exercise of this authority is found in the statute applicable here. Daniels v. Decatur County, supra at 379 (l). By OCGA § 33-24-51 (a), the General Assembly authorizes a political subdivision to provide liability insurance for bodily injury or death “arising by reason of ownership, maintenance, operation or use of any motor vehicle” by the political subdivision, “whether in a governmental undertaking or not.” The obvious purpose is a humane one, to provide relief for people who are injured or killed in certain instances, when otherwise they would be without remedy because the governmental unit is immune from suit.

As recognized in Pate, the legislature did not define a “motor vehicle” for the purpose of this statute, although for other specific purposes strewn throughout the Code it provided a variety of definitions tailored to whatever the legislature’s goal was in that particular statute.2 Here the object is coverage, not non-coverage, and the legislature does not limit the motor vehicles to those which require state registration or licensing or which are intended primarily for use upon the public highways. It is common knowledge that “[a] municipal corporation, a county, or any other political subdivision of this state” would own, maintain, operate, or use many motor vehicles other than cars, buses, and trucks. It is further ordinarily known that persons could be injured or killed by such vehicles on the roadways.

The term should therefore be broadly construed, to achieve the purpose of the statute and because no limiting definition is given, as in other instances. OCGA § 1-3-1; City of Calhoun v. North Ga. EMC, 233 Ga. 759, 761 (1) (213 SE2d 596) (1975). As repeated in that case, “the cardinal rule to guide the construction of laws is, first, [as stated in OCGA § 1-3-1 (a),] to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.” (Punctuation omitted.) *183Id. In addition, “[statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987); OCGA § 1-3-1 (b). “[A] statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose.” (Citation and punctuation omitted.) Blank v. Collins, 260 Ga. 70, 71 (2) (389 SE2d 493) (1990).

According to The American Heritage Dictionary (2nd College ed. 1985), a motor vehicle is “a self-propelled, wheeled conveyance that does not run on rails.” The backhoe in this case would also come within the definitions provided in OCGA §§ 40-1-1 (75) and 40-1-1 (33), if some selective application of legislative definitions for other purposes is appropriate. Those definitions govern the general regulation of “Motor Vehicles and Traffic” in Title 40. The definition in OCGA § 40-1-1 (33) was applied to include a medium-sized Ford tractor for the purpose of sentencing a thief of a “motor vehicle” in violation of OCGA § 16-8-12 (a) (4) (A), in Browning v. State, 207 Ga. App. 547, 549 (3) (428 SE2d 441) (1993). If it can be used to distinguish between felony and misdemeanor sentence authorization in a criminal statute, which must be strictly construed, Doe v. Bd. of Regents &c. of Ga., 215 Ga. App. 684, 688 (3) (452 SE2d 776) (1994), it should apply as well to insurance coverage when no narrower definition is supplied by the legislature. In Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438 (287 SE2d 226) (1981), the Court in construing a Georgia Infirmary Non-Profit Housing Corporation insurance policy (“known as an apartment owner’s property liability policy”) held that a mobile crane was a covered vehicle. The policy did not define “vehicle” but did state that it did not insure “[a]ny vehicle or machine licensed for use on [a] public thoroughfare.”

The backhoe clearly comes within at least some of the other definitions expressly provided by the legislature for other purposes, such as OCGA §§ 16-5-44.1, 40-11-1 (2), and 43-48-2. Had the legislature intended the authorization for insurance to be limited to instances where human life and limb are adversely affected by motor vehicles required to be registered and licensed only, or only for those designed primarily for operation on the public streets, roads and highways, and not including other motor vehicles typically owned by governmental units which are just as likely to cause injury or death, it could have so provided. Moreover, what it did encompass in the statute was “any motor vehicle”; we cannot ignore the word “any.”

It is not within our realm of authority to pick and choose from the variety of definitions formulated for other specific subject matters which the legislature was addressing. See generally City of Ros*184well v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). Nor does the law allow us to import a limitation not otherwise appearing. Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991).

The insurance in this case provides general liability coverage; it is not an automobile policy. Motor vehicle accident insurance, which is governed by Chapter 34 of the title on insurance, has a definition in OCGA § 33-34-2 (1) for “motor vehicle” as the term is “used in [that] chapter,” which as stated earlier is known as the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-1. On the other hand, OCGA § 33-24-51 (a) does not limit the governmental unit to the purchase of motor vehicle liability insurance under Chapter 34. In Gilbert v. Richardson, 264 Ga. 744, 751 (5) (452 SE2d 476) (1994) , the Supreme Court held that a county’s purchase of a GIRMA (Georgia Interlocal Risk Management Agency) liability coverage agreement “covering the negligent acts of its employees constitutes the purchase of insurance as contemplated by § 33-24-51 (b).” Authority for this coverage is not under the Insurance Title of the Code (no. 33) but rather under the Local Government Title (no. 36). So there is no reason to limit the definition of “motor vehicle” as used in OCGA § 33-24-51 (b) to the definition provided in a different part of the Insurance Title just because they are both assembled under the Insurance Title. The codifiers, not the General Assembly, put them together. See Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1. In McLemore v. City Council of Augusta, 212 Ga. App. 862, 863 (2) (b) (443 SE2d 505) (1994), we held that OCGA § 33-24-51 was not limited to automobile liability policies and that the general liability policy in that case was a policy “within the meaning of OCGA § 33-24-51.”

Therefore, as in Gilbert and McLemore, Polk County “has waived its sovereign immunity to the extent of its liability coverage,” Gilbert, supra at 752, as coextensive with the scope of the statute. Winston v. City of Austell, 123 Ga. App. 183, 184 (179 SE2d 665) (1971); Revels v. Tift County, 235 Ga. 333, 335 (4) (219 SE2d 445) (1975). See, e.g., Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995) . There it was held that although the county had coverage under a policy of liability insurance, the waiver provided in OCGA § 33-24-51 (b) did not lift the immunity defense because plaintiffs did not allege negligent use of a motor vehicle but rather negligent inspection and maintenance of a stop sign. OCGA § 33-24-51 (b) expressly provides the waiver.

The policy does not exclude coverage for injury involving the backhoe, but only to “ ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” Thus, the coverage authorized by the statute, which *185when purchased waives sovereign immunity to that extent, includes that which the policy provided for here. As to this incident, they coincide. To agree with the insurer would mean that the general liability insurance which it sold to the county for a premium covered that for which the county had sovereign immunity.

Decided June 27, 1996 Reconsideration denied July 10, 1996 Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, C. Michael Conroy, for appellant. Duncan & Mangiafico, George E. Duncan, Jr., for appellees.

Although Ward, and Bd. of Regents involve the immunity of the state under Art. I, Sec. II, Par. IX of the Constitution, rather than a county’s immunity under Art. IX, Sec. II, Par. EX, the law is the same in respect to the extent of the waiver. What is expressly provided in the Constitution for the state waiver is provided in the statute, OCGA § 33-24-51 (b), for the county waiver.

See, e.g., OCGA § 10-1-2 (5) (Retail Installment & Home Solicitation Sales Act); OCGA § 10-1-31 (4) (Motor Vehicle Sales Finance Act); OCGA § 10-1-622 (10) (Georgia Motor Vehicle Franchise Practices Act); OCGA § 12-9-43 (17) (Georgia Motor Vehicle Emission Inspection & Maintenance Act); OCGA § 16-5-44.1 (2) (Anti-motor Vehicle Hijacking Act); OCGA § 16-8-82 (2) (Motor Vehicle Chop Shop & Stolen & Altered Property Act); OCGA § 40-5-142 (19) (Uniform Commercial Driver’s License Act); OCGA § 40-11-1 (2) (Abandoned Motor Vehicles Title); OCGA § 43-13-2 (4) (Driver Training School License Act); OCGA § 43-47-2 (3) (Used Car Dealers’ Registration Act); OCGA § 43-48-2 (7) (Used Motor Vehicle Dismantlers, Rebuilders, & Salvage Dealers Registration Act); OCGA § 46-1-1 (16) (Public Utilities & Public Transportation Title); OCGA § 48-5-440 (4) (Ad Valorem Taxation of Motor Vehicles & Mobile Homes Title); OCGA § 48-9-2 (10) (A), (B) (Motor Fuel Tax Law); OCGA § 48-9-30 (3) (A), (B), (C) (Road Tax on Motor Carriers Title).